Canada: The New ICC Arbitration Rules – What You Need to Know

On January 1, 2012, the International Chambers of Commerce's
newly revised Rules of Arbitration (the "2012 ICC Rules")
took effect. The new rules apply to all ICC arbitrations going
forward, unless the parties agree to adopt the rules that were in
effect when their arbitration agreement was executed.

This is the ICC's first revised set of arbitration rules in
thirteen years; the last revision was in 1998. Since then, both the
use and practice of international arbitration have expanded
significantly, and the revisions are designed to bring the rules up
to speed with current commercial and dispute resolution needs.

The revisions seek to address three developments in
international arbitration: the increasing complexity of disputes,
the desire for more effective case management, and the occasional
need for urgent interim measures.

The following is a primer of the most significant features of
the 2012 ICC Rules.

Application for an emergency arbitrator: This
is a new feature introduced by the ICC. Under Article 29 and
Appendix V, a party urgently seeking interim or conservatory
measures and that cannot wait for the constitution of an arbitral
tribunal may apply for an emergency arbitrator. The emergency
arbitrator's decision will take the form of an order that binds
the parties. However, the decision does not bind the arbitral
tribunal, which can modify, terminate or annul the order.

Parties can agree to opt out of the emergency arbitrator rules
or agree to another pre‐arbitral procedure that allows
for interim measures. It is important to note that the emergency
arbitrator rules do not apply to arbitration agreements that were
concluded before January 1, 2012, even if the claim arose after
that date.

New rules dealing with multi-party or multicontract
arbitration: Previously, the ICC had no specific rules for
dealing with multiple arbitration agreements, consolidating
arbitrations, or enjoining additional parties to an arbitration.
The only rule under the previous regime that dealt specifically
with multiple parties was about the procedure under which parties
to a multi-party arbitration may nominate the arbitrators.

Now, to accommodate the increasing complexity of international
arbitration and the growing diversity of disputes subject to
arbitration, the ICC has introduced the following new rules:

Joinder of additional parties (Article 7): A
party that wishes to bring an additional party into the arbitration
may submit a Request For Joinder to the Secretariat of the ICC. The
party seeking the joinder must make the request before the
confirmation or appointment of any arbitrator.

Claims between multiple parties (Article 8):
The rules now state that if the arbitration has multiple parties,
any party may claim against any other party before the Terms of
Reference have been signed, even if the claims are subject to
different arbitration agreements.

Multiple contracts (Article 9): Claims arising
out of, or in connection with, multiple contracts may be
adjudicated at a single arbitration, regardless of whether the
claims are made under one or multiple arbitration agreements under
the ICC's rules.

Consolidation of arbitrations (Article 10):
The ICC International Court of Arbitration (the "ICC
Court") may consolidate multiple arbitrations into one
proceeding, provided that: (a) all the parties agree; or (b) all
the claims are made under the same arbitration agreement; or (c)
the claims are made under multiple arbitration agreements but the
parties are the same and the agreements are compatible.

New confidentiality orders: The ICC 2012 Rules
give the arbitral tribunal greater flexibility and authority to
impose confidentiality on the proceedings.

Under the old regime, the only rule dealing with the
confidentiality of arbitration proceedings was a rule allowing the
arbitral tribunal to take measures protecting trade secrets and
confidential information. Confidentiality of the arbitration itself
had to be contracted between the parties.

Now, under Article 22(3) of the new rules, a party may request
the arbitral tribunal to make orders concerning the confidentiality
of the proceedings or of any other matters relating to the
arbitration. Confidentiality no longer has to be by agreement.

More effective case management: Scattered
throughout the ICC 2012 Rules are revisions to make the arbitration
process more efficient and robust. For example, Article 24 of the
new rules requires the arbitral tribunal to convene a case
management conference when drawing up the Terms of Reference (or as
soon as possible thereafter), and to establish a procedural
timetable for the arbitration.

As well, Article 22 now obligates the parties to conduct the
arbitration "in an expeditious and cost-effective
manner", and the extent to which they do so may be taken into
consideration in awarding costs (Article 37(5)).

Jurisdictional challenges are now generally heard by the
arbitral tribunal itself: Under the old rules, any
challenge to the existence, validity or scope of an arbitration
agreement had to be determined on a prima facie basis by
the ICC Court. Now, Article 6 of the ICC 2012 Rules provides that
such challenges will be heard alongside the other issues before the
arbitral tribunal. The Secretary General of the ICC nonetheless
retains the discretion to refer the jurisdictional challenge to the
ICC Court.

Impartiality of an arbitrator: Where under the
old rules, arbitrators only needed to be independent, the ICC 2012
Rules add that every arbitrator must also be impartial (Articles
11, 13 and 14). To that extent, every arbitrator must sign a
statement of acceptance, availability, independence and
impartiality prior to being appointed or confirmed. An arbitrator
must also disclose any circumstances concerning his or her
independence or impartiality which may arise during the
arbitration.

REMARKS

The redrafting of the ICC Rules is just the latest development
in a broader trend of tailoring international arbitration
procedures to the needs and realities of large‐scale
commercial dispute resolution in an information age. In 2010, for
example, the International Bar Association updated its Rules on the
Taking of Evidence to allow for greater confidentiality protections
and guidance on electronic disclosure, and to encourage a clear and
more economical process for taking evidence. Also in 2010, the
United Nations Commission on International Trade Law
("UNCITRAL") revised its arbitration rules (previously
untouched since 1976) to allow for the efficient resolution of
complex multi‐party disputes, as well as to clarify the
availability of interim measures and provide for the establishment
of procedural timetables.

The response from the international arbitration community to the
ICC 2012 Rules, as well as to the IBA and UNCITRAL's revisions
of their own respective procedures, has been very positive. These
developments should result in even more parties resorting to the
arbitration model to resolve their disputes.

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
www.fmc-law.com

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